Friday: the day after Thursday leads to copyright controversy

Rebecca Black is a 13 year old music prodigy from Orange County, California.  Actually, that’s not entirely true.  Rebecca Black is a young girl whose song titled “Friday” is testament to the power of social media and autotune.  With over 100 million hits at the time of writing, the song describes the trials and tribulations faced by a typical 13 year old girl.  She’s “gotta go downstairs, gotta have some cereal”, and decide whether kickin’ in the front seat or sittin’ in the back seat is a better way to get to school.  When the song culminates by prophetically stating that “Yesterday was Thursday, today it is Friday… tomorrow is Saturday, and Sunday comes afterwards”, it sounds more like an educational Sesame Street song than a pop hit.

But it is not the lyrical genius of the song which has sparked recent controversy.  Late last month Black’s mother sent a letter to Ark Music Factory, the LA-based production company responsible for writing and producing the hit, accusing the label of copyright infringement and unlawful exploitation of publicity rights.  Black’s mother paid Ark $US4,000 in late 2010 to record and produce the track and according to Black’s mother, amongst other things, Ark have failed to provide the master recordings of the song and video pursuant to their agreement in which it was apparently agreed that Black would have 100% ownership and control of the song. 

Ark struck back claiming that Black’s mother “will get the masters and the song” as agreed, but with its lawyer going on to say that the agreement may not be enforceable as it was not “court-approved”.  And it is this enigmatic comment that deserves further consideration.

At first glance this seems quite strange – an agreement is a private arrangement between two parties and, subject to certain public policy considerations, the parties are usually free to contract as they wish.  Since when do agreements need to be court approved?  But aye, there’s the rub – for in this agreement with a minor what terms may come? 

Minors generally lack the capacity to enter into a legally binding agreement.  Under Californian law, however, entertainment companies are able to seek that a superior court “approve” an agreement pursuant to which a minor is employed or agrees to render artistic or creative services, or one in which a minor agrees to sell or license his or her musical properties, voice recordings or likeness etc.  If the agreement is so approved, the minor will not be able to “disaffirm” the agreement and escape his or her contractual obligations.

In Australia, on the other hand, the capacity of minors to enter into legally binding contracts is governed almost exclusively by the common law (it must be noted, however, that legislation in Victoria has made the situation slightly different, whereas NSW has introduced the Minors (Property and Contracts) Act 1970 (NSW), which seeks to replace the common law almost completely).  Under the common law, a contract with a minor that is not for “necessities” will be voidable unless ratified by the minor on attaining majority.  In NSW this is not necessarily the case, and a contract which is judged to be for the benefit of the minor, even if not for “necessities”, will be presumptively binding on the minor.  Notably, while some jurisdictions in Australia do have legislative acts or codes regulating child employment, very few offer mechanisms whereby superior courts can actually approve contracts with minors (cf Minors Contracts (Miscellaneous Provisions) Act 1979 (SA); Minors (Property and Contracts) Act 1970 (NSW) for contracts up to $750).

So it sounds like Ark might have a way of getting out of the agreement.  Right?  Wrong.  Unfortunately for Ark, under Californian law (as with Australian common law), it is only the minor who can disaffirm (elect to avoid) a contract and refuse to be bound by it.  As such, Ark will be bound by the agreement notwithstanding that it has not been approved by the court unless Black elects differently.  Until then, Ark will have to comply with the terms of the agreement.

Bad news for Ark, but good news for all those young, aspiring singers out there ready to release the next big hit about months of the year or colours in a rainbow.

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